Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No. 1084798, James A. Hermann, Judge.
Susan B. Lascher, under appointment by the Court of Appeal for Defendant and Appellant J. C. Frederick Castro.
Jennifer A. Mannix, under appointment by the Court of Appeal for Defendant and Appellant Joseph Brian Morales.
Susan S. Bauguess, under appointment by the Court of Appeal for Defendant and Appellant Angel Felix Gardea.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Timothy M. Weiner, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
J. C. Frederick Castro, Joseph Brian Morales, and Angel Felix Gardea appeal from judgments after they were convicted by jury of two counts of attempted murder, one count of shooting from a vehicle, and one count of dissuading or attempting to dissuade a witness by force or threat. (Pen. Code, §§, 664/187, subd. (a); 12034, subd. (c); 136.1, subd. (c)(1)-(2).) The jury found that Castro personally used a knife in the count 1 attempted murder, and personally caused great bodily injury; that Morales personally used a firearm causing great bodily injury in the count 2 attempted murder; and also found several principal weapon use, great bodily injury, and criminal street gang allegations to be true. (§§ 12022, subd. (b)(1); 12022.7, subd. (a); 12022.53, subds. (b) & (d); 667.5, subd. (b); 186.22, subd. (b).) The court sentenced appellants as follows for counts 1 and 2: Castro, 52 years to life, combined; Morales, 55 years to life, combined; and Gardea, 47 years to life, combined. It sentenced each appellant to 32 years to life for count 3, and 7 years to life for count 4, and stayed their counts 3 and 4 sentences pursuant to section 654.
All statutory references are to the Penal Code unless stated otherwise.
Appellants challenge the sufficiency of the evidence to support counts 2, 3 and 4 (attempted murder, shooting from a vehicle, and dissuading a witness by force or threat of violence). They also raise evidentiary, instructional, and sentencing errors. An instructional error compels the reversal of Morales's count 1 attempted murder conviction; Castro's count 2 attempted murder conviction; and Gardea's counts 1 and 2 attempted murder convictions. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
Northwest Gang
The Northwest gang claims the northwest part of Santa Maria, including the Evans Housing Project. The gang has at least 500 members and uses "NW," "SM," "EP," "M," and "13" as its symbols. The crimes that members have committed for the gang include thefts, narcotic sales, assaults, burglaries, stabbings, street terrorism and mayhem.
Appellants are active Northwest members and use the monikers Casper or Big Casper (Castro); Fuzzy or Fuzz Dog (Gardea) and Little (Morales). Victim Andres Delatorre is a former Northwest gang member who used the moniker Ghost.
The "Three R's" of gang culture are respect, reputation, and retaliation. Gangs often resort to violent means to address problems. Gang members do not cooperate with the police, even when they are crime victims. When a gang member cooperates with the police, the gang labels him or her as a "rat." The gang gives members the "green light" to hurt or kill a rat. Gangs also "green light" members who reflect poorly on the gang by displaying weakness. Gang members expect help from other members. The gang turns against members who fail to respect or support it. It deals with such failures as it deems necessary.
Delatorre belonged to Northwest for more than 10 years. Some time prior to September 2004, he and fellow Northwest members Jerry Wallen (Casper) and Jerry Grinder (Shady) simultaneously served sentences at the California Youth Authority (CYA). Wallen concluded that Grinder's failure to fight back while in CYA reflected poorly on Northwest.
In September 2004, Wallen visited Delatorre at his home after his release from CYA. Wallen asked Delatorre to set up Grinder by bringing him to a location where the gang could kill him. Delatorre refused to do so. Delatorre's status in Northwest declined following that refusal. Wallen threatened to have other gang members hurt Delatorre and turned other members against him. Delatorre felt that his life was in danger. In late September, someone telephoned Delatorre and said that Grinder had been killed.
In October 2004, Delatorre was sent to Wasco State prison. He sought and received protective custody. Protective custody inmates are housed apart from the general prison population and assigned distinct clothing. Gang members perceive protective custody inmates as "green light" targets.
Delatorre's incarceration was unrelated to the still unsolved Grinder homicide.
Jerry Grinder Investigation
Grinder's body was found in January 2005. In late January or early February 2005, a deputy district attorney and Detective Mark Schneider of the Santa Maria Police Department went to Wasco State Prison to interview Delatorre. Prison employees brought Delatorre to the gang investigator's unit for the interview. Schneider was known among Northwest members as a gang investigator. On the day of the interview, Wallen was an inmate at Wasco.
After the interview, Schneider escorted Delatorre back to his cell. As Delatorre passed the area where Wallen was housed, he heard a loud noise coming from the top tier cells. He looked up and saw Wallen. By walking with Schneider from an area known among inmates as the gang investigation unit, Delatorre became a visible "rat" who cooperated with law enforcement.
Prison authorities released Delatorre on April 12, 2006. After his release, he used and sold drugs. Recognizing that gang members believed or suspected that he was a rat, Delatorre tried to avoid contact with anyone other than close friends who would not be a threat.
July 8, 2006, Stabbing of Delatorre
Delatorre and his girlfriend, Sylvia Liendo, shared a cell phone. On July 8, 2006, they were at a friend's home when their cell phone rang. Liendo answered, spoke briefly with the caller, Gardea, and handed Delatorre the phone. Gardea wanted to buy $30 worth of methamphetamine. Gardea and Delatorre agreed to meet at Thornburg and Main.
Delatorre left Liendo at a friend's home and drove her red Honda to a parking lot at Thornburg and Main. Delatorre noticed Morales standing in the alley, looking back and forth. Gardea parked his car next to the Honda, facing in the opposite direction, so that the drivers' doors of the cars were side by side. Gardea left his car, walked around to the passenger side of the Honda, and leaned into it. When Delatorre handed him a sack of "dope," Gardea complained about the dope, and remained on the passenger side of the Honda. As Delatorre responded to Gardea's complaints, Castro approached the driver's side of the Honda and stabbed Delatorre repeatedly in the chest. Gardea and Castro left quickly. A witness said that after the attack, he saw a guy who had been hiding in the bushes enter a car and leave the area.
Delatorre started bleeding heavily and had difficulty breathing. He managed to drive back to his friend's house. Sylvia drove him to the hospital. Delatorre suffered a collapsed lung, required surgery, and remained in intensive care for six days. He initially told the police that he did not know who had stabbed him.
While Liendo was at the hospital on July 8, she received a call from Gardea on her cell phone. Liendo asked Gardea what had happened. Gardea claimed that he did not know. Liendo then told Gardea that she knew he had set up Delatorre. Gardea denied it and Liendo hung up on him. After Delatorre was out of surgery, Liendo left the hospital.
July 9, 2006, Shooting of Liendo
On July 9, Liendo spent most of the day at the hospital. She then drove to the apartment of Delatorre's mother, Pam Delatorre. While driving to Pam's apartment, Liendo noticed that a blue Blazer seemed to be following her.
After staying at Pam's apartment for a few hours, Liendo drove Pam, Delatorre's sister, Jessica Delatorre, and Jessica's boyfriend, Victor Garcia, to the hospital. They stayed with Delatorre until visiting hours ended at 8:00 p.m. It was just starting to get dark as they returned to Pam's apartment.
Liendo's Honda stalled as it entered the driveway of Pam's complex. Garcia opened its hood while the three women started removing things from the Honda. A dark Blazer approached and continued past them while its front seat passenger fired several shots at them. One shot hit Liendo's arm. It caused serious injuries that required surgery.
Investigation and Events Surrounding and Following the Crimes
Liendo saw two people in the Blazer, including Gardea, its driver. Jessica also saw two people; she recognized and identified Morales as the shooter. She knew him because they had been in juvenile hall together. At trial, Pam recalled that she saw two people in the Blazer. On the night of the shooting, however, Pam told the 911 operator and an investigating officer that she thought that there were three people in the Blazer. Approximately 15 to 45 minutes before hearing gunshots on July 9, another resident of Pam's complex saw a dark "SUV" passing by while its occupants looked at Pam's apartment. That witness described the SUV's occupants as males and said that the back seat passenger appeared to be a "gang type."
Investigating officers found several bullet casings at the shooting scene. The casings appeared to have been fired from a nine-millimeter semiautomatic handgun.
After learning from his mother that Liendo had been shot, Delatorre decided to cooperate with police. He then told an investigator the gang monikers of the people involved. He also viewed photographic lineups and identified Castro as the stabber, Morales as the lookout and Gardea as the person who had set him up. Police recovered a palm print from the roof of Liendo's Honda, just above the driver's door. It matched Castro's palm print.
In July 2006, former Northwest member Augustine Mansera lived in Santa Maria with Angeles Flores and their children. Mansera had several gang-related criminal convictions. Morales visited and sometimes stayed at Mansera's home.
On the evening of July 9, Morales and Castro tried to leave several shotguns and a nine-millimeter handgun at Mansera's home. Castro got upset when Mansera refused to accept the guns. Mansera told him to leave.
On July 10, Morales brought a blue Blazer to Mansera's residence and asked him for his help to clean it. Mansera declined and went to work. On the morning of July 11, the Blazer was still at Mansera's residence. Morales returned on July 11. Mansera did not want the Blazer at his residence. He provided Morales with cleaning supplies.
On July 10 or 11, while visiting Mansera, Morales said that he, Castro and Gardea had stabbed Delatorre. He said that Castro was the stabber. Morales also claimed that the three of them had "blasted some fools," and that all of them had shot the gun.
On July 11, Detectives William Jackson and Maria Giese of the Santa Maria Police Department went to Mansera's residence looking for the Blazer that was reportedly used in a drive-by shooting. When they approached, Mansera and Cartoon, another Northwest member, were looking in the Blazer and Morales was near the front of the residence. The detectives ordered the men to lie on the ground. Cartoon and Mansera complied. Morales put his hand in his waistband and ran inside. Jackson followed Morales into the residence, learned that he had gone over a back yard fence, and tried to find him. While searching the neighborhood, Jackson found a bullet-proof vest and a jacket under a bush in a yard, three doors from Mansera's residence. The police found Morales's wallet inside Mansera's residence.
On July 13, Corporal Luis Tanore of the Santa Maria Police Department and his partner looked for appellant at the residence of Roseanna Regalado. Morales and Castro were outside her residence when officers arrived. Castro complied with their order to lie on the ground and Morales ran inside the residence. They arrested Castro. They also found and arrested Morales.
Delatorre and Liendo entered a witness protection program after the stabbing and the shooting. They no longer live in California.
Police recovered the blue Blazer that Gardea had driven during the shooting. It contained gunshot residue.
Jessica Delatorre's boyfriend, Garcia, belonged to the Nipomo 13 gang. In October 2006, Garcia was in jail. Morales was then housed at the same jail, a few cells away. Garcia told Morales that he was Jessica's boyfriend, and Delatorre's "home boy" or friend. Morales asked whether Jessica was pregnant. A few months later, Garcia was placed in jail again. He identified himself and his gang affiliation to his cell mates. He also disclosed that he did not get along with Northwest "guys" and said they had stabbed Delatorre, and shot at Garcia's girlfriend, Delatorre's sister. His cell mates said that Delatorre was no good, a snitch and a "piece of shit." They knocked on the cell wall. Castro was downstairs. Garcia's cell mates asked Castro if he knew Garcia was there. Castro told them to just "kick back" and said he would talk to them in the morning. Nothing happened that night. Several inmates, including Castro, attacked Garcia the following day. They told him to "get out, roll [his] stuff up and leave." Garcia moved to protective custody.
In November 2006, Morales's jail cell contained gang graffiti and gang writing. It also contained papers that referred to Liendo and Delatorre. A gang expert opined the papers were "snitch papers" which reflected that Northwest had identified Liendo and Delatorre as "rats."
Defense Evidence
Jonathan and Julie Brady testified that Morales was at their apartment on July 8, 2006, visiting Julie's brother, Christopher Jones. They recalled that Morales was there from about 9:00 a.m., until after 9:00 p.m. During that day, Morales and Jones left very briefly to get a money order. Morales and Jones also left the apartment briefly to get some fast food.
Morales's girlfriend, Crystal Ortega, testified that Morales slept at her cousin's home during most of the day on July 9. Ortega left her cousin's home for part of that afternoon but returned to find Morales was still there. He stayed there until Ortega took him to work that night at about 10:00 p.m.
Gardea's friend, Orlando Cezar del Valle, picked up Gardea between 5:00 and 6:00 p.m. on July 9, and stayed with him "until dark." Gardea's mother testified that he called her around 8:00 p.m. on July 9 and said that his wife had kicked him out of his house. His mother then picked up Gardea and his young daughter and drove them to her home.
Pam, Jessica, and Garcia could not identify the shooter on July 9. Jessica refused to cooperate with police investigators soon after the shooting took place. She did not name Morales as the shooter until she secured placement in the witness protection program.
DISCUSSION
Sufficiency of the Evidence
Appellants claim that insufficient evidence supports their convictions for each of the July 9, 2006, offenses (attempted murder, shooting from a vehicle and dissuading or attempting to dissuade a witness by force). We conclude that sufficient evidence supports their convictions.
In reviewing an insufficient evidence claim, we consider the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (See People v. Wallace (2008) 44 Cal.4th 1032, 1077.) We presume the existence of every fact supporting the judgment that the trier of fact reasonably could have deduced from the evidence. A judgment will be reversed only if there is no substantial evidence to support the conviction under any hypothesis. (People v. Crittenden (1994) 9 Cal.4th 83, 139; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
On July 8, Gardea arranged to buy drugs from Delatorre and meet him near Main Street. Gardea distracted Delatorre while Castro stabbed his chest repeatedly and Morales served as the lookout. When Gardea called Liendo later that day, she accused him of having set up Delatorre. Liendo hung up when Gardea denied it. The next day, Liendo noticed a blue Blazer that seemed to be following her as she drove from the hospital to Pam's apartment. Later that night, after 8:00 p.m., Gardea drove a blue Blazer with Morales and Castro as his passengers, and Morales fired five or six shots at Garcia, Pam, Jessica and Liendo as they stood near her car. A bullet entered Liendo's arm. Her injuries required surgery. Pam saw a third person in the Blazer during the shooting. Shortly before the shooting, another person saw a dark SUV pass by, as its three male occupants looked at Pam's apartment. On the night of the shooting, Morales and Castro tried to leave a nine-millimeter handgun and several shotguns at Mansera's home. Castro got upset when Mansera refused to store the guns. On July 10, Morales asked Mansera to help him clean the Blazer. Morales was at Mansera's home on July 11 when police found the Blazer there. On July 10 or 11, Morales told Mansera that he, Castro and Gardea had "blasted some fools" with a gun. The Blazer contained gunshot residue.
The crime of attempted murder includes the element of intent to kill. (People v. Visciotti (1992) 2 Cal.4th 1, 56.) "One who intentionally attempts to kill another does not often declare his state of mind either before, at, or after the moment he shoots. Absent such direct evidence, the intent obviously must be derived from all the circumstances of the attempt, including the putative killer's actions and words. Whether a defendant possessed the requisite intent to kill is, of course, a question for the trier of fact. While reasonable minds may differ on the resolution of that issue, our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.]" (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.) Any rational trier of fact could have found that Morales intended to kill Liendo and that Gardea and Castro shared that intent and assisted Morales in the shooting.
A rational trier of fact could also infer that appellants shared the intent to dissuade Liendo from testifying, and to do so by shooting her from a vehicle. With the help of Gardea and Castro, Morales shot Liendo the day after she told Gardea that she knew he had set up Delatorre. All three appellants participated in the attack on Delatorre. While only Gardea heard Liendo say that he had set up Delatorre, it would not serve the interests of Morales and Castro if Liendo directed the police to their accomplice. There is no question that appellants armed themselves before entering the Blazer, or that the shots were fired from it. Substantial evidence supports the convictions.
The Grinder Evidence
Morales and Gardea argue that the trial court improperly admitted evidence concerning Grinder's unsolved murder. We disagree.
Morales objected to the admission of any evidence concerning the Grinder homicide, arguing that it was "mere speculation," which should be excluded pursuant to Evidence Code section 352. After conducting an Evidence Code section 402 hearing, the court considered the Grinder evidence and concluded that it was more probative than prejudicial. We will disturb a trial court's exercise of discretion under Evidence Code section 352 only if the court's decision exceeds the bounds of reason. (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) In this case, the court acted well within the bounds of reason.
Moreover, even if we conclude that the challenged evidence was inadmissible or its admission was an abuse of discretion, the error would be harmless. There was overwhelming evidence of Morales's and Gardea's guilt without the evidence concerning Grinder. Although Morales and Gardea presented alibi witnesses, the jury rejected their testimony. Gardea set Delatorre up for the stabbing and drove the Blazer, while Morales shot and wounded Liendo. On the night of the shooting, Morales tried to leave the guns at Mansera's home. He sought Mansera's assistance for cleaning the Blazer and told Mansera that he, Castro and Gardea had stabbed Delatorre and "blasted some fools" with guns.
Conspiracy Instruction
Appellants contend that the trial court erred by instructing the jury based on a theory of conspiracy to commit attempted murder because there is no crime of conspiracy to commit attempted murder in California. We agree.
Respondent asserts that appellants waived this challenge to CALCRIM No. 416 by failing to object below. We reject this assertion. "Section 1259 states, inter alia, 'The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.' [Citations.]" (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 6.)
People v. Iniguez (2002) 96 Cal.App.4th 75 held that a guilty plea to conspiracy to commit attempted murder must be set aside because there is no such crime under California law: "[T]he targeted crime of the conspiracy, attempted murder, requires a specific intent to actually commit the murder, while the agreement underlying the conspiracy pleaded to contemplated no more than an ineffectual act. No one can simultaneously intend to do and not do the same act, here the actual commission of a murder. This inconsistency in required mental states makes the purported conspiracy to commit attempted murder a legal falsehood." (Id. at p. 77.)
Here, appellants contend that because the jury was instructed on an improper theory of conspiracy, the attempted murder convictions which may be based on that theory of liability require reversal. (This argument does not apply to Castro's count 1 attempted murder conviction or Morales's count 2 attempted murder conviction which necessarily rested on a direct liability theory where the jury also found that Castro personally stabbed Delatorre and Morales personally shot Liendo.)
Appellants do not challenge the validity of CALCRIM 416 itself, or its application to counts 3 and 4 (shooting from a motor vehicle, and intimidating a witness). Nor do they challenge the instructions that the court gave the jury concerning the elements of the charged offenses, or the aiding and abetting theory of liability. Rather, they argue that the CALCRIM 416 instruction used below erroneously incorporated a crime that does not exist under California law. If an offense does not exist, a defendant cannot be part of a conspiracy to commit it. (People v. Zacarias (2007) 157 Cal.App.4th 652, 660.) By instructing the jury that appellants could conspire to commit attempted murder, the court presented it with a legally invalid theory.
"When one of the theories presented to a jury is legally inadequate,... reversal generally is required unless 'it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory.' [Citation.]" (People v. Perez (2005) 35 Cal.4th 1212, 1233.) In reviewing the attempted murder verdicts which do not rest on a direct liability theory, we cannot make a determination as to which theory the jury relied in convicting appellants.
In arguing to the jury, the prosecutor explained three alternate theories of liability, including the conspiracy theory: "You do not have to have all of the people present when the crime is committed. They don't even have to know that all of the people are involved in the conspiracy. You just have to have two agree and two agree or all three agree, and one of them commits an overt act...."
While urging the jury to convict all three appellants of the attempted murder of Delatorre, the prosecutor explained various liability theories and reiterated that "[a]ll three [appellants were] liable under a conspiracy theory.... [I]t doesn't matter whose idea it was [or]... even if they were in the same room when they talked about it. Then you have a number of overt acts.... Any one of these makes them all guilty for the attempted murder, it doesn't matter which [act],... and then all three of them are then guilty."
The prosecutor also advised the jury that it could rely upon a conspiracy theory or alternate theories to convict Gardea and Morales of the attempted murder of Liendo: "[Gardea] is liable under both aiding and abetting and conspiracy;... did he agree to commit the crime and then his friend fired the gun?" As to Castro, the prosecutor argued: "[T]hese same three are involved in the conspiracy to do the stabbing and shooting. [T]o be guilty of attempted murder in this crime, Castro doesn't even have to be in the Blazer at the time." The prosecutor stressed the ease of reaching a guilty verdict by using a conspiracy theory: "Conspiracy is even easier [than aiding and abetting.] Did they all agree to attempt to kill... Liendo[?]... Any one of these things make them all guilty under a conspiracy theory, and, therefore they're all guilty of attempted murder of a principal use of a firearm in a gang case, causing great bodily injury and of the gang allegation."
Because we cannot determine which theory of liability the jury applied in convicting Gardea of count 1 or count 2, in convicting Morales of count 1, or of convicting Castro of count 2, we must reverse their convictions of those attempted murders. (See People v. Perez, supra, 35 Cal.4th at p. 1233.)
Castro also challenged the court's imposition of a 15-year minimum parole eligibility limitation on his count 2 attempted murder conviction. While that issue is arguably moot with the reversal of that count, it could arise in the event of a retrial. The imposition of the 15-year minimum parole eligibility limitation on count 2 was improper because there was no finding that Castro personally used a firearm. (§§ 12022.53; 186.22, subd. (b)(5); People v. Salas (2001) 89 Cal.App.4th 1275, 1281-1284.) The court imposed a similar improper limitation on Gardea's count 1 attempted murder conviction although there was no finding that Gardea personally used a weapon in committing that offense.
Other Jury Instructions
Gardea and Morales contend that the court erred by instructing the jury with CALCRIM Nos. 223, 226 and 302 because those instructions impermissibly reduced the prosecution's burden of proof, or because they are ambiguous. We disagree.
In deciding whether jury instructions correctly convey the law, the reviewing court must look to the instructions as a whole to see whether there is a reasonable likelihood the jury misunderstood the instructions. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Jurors are presumed to be intelligent and capable of understanding and correlating jury instructions. (People v. Carey (2007) 41 Cal.4th 109, 130.)
As read to the jury, CALCRIM No. 223 states: "Facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself. For example, if a witness testifies he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining. Circumstantial evidence also may be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may conclude the truth of the fact in question. For example, if a witness testifies that he saw someone come inside wearing a raincoat covered with drops of water, that testimony is circumstantial evidence because it may support a conclusion that it was raining outside. [¶] Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence."
Gardea and Morales also challenge CALCRIM No. 223. Specifically, they argue that by "stating that both direct and circumstantial evidence are acceptable types of evidence 'to prove or disprove the elements of a charge,' [CALCRIM No. 223] tells the jury that the defense has a duty to present evidence to disprove the charge." We disagree. There was no misstatement of law or error in this pattern instruction. (People v. Ibarra (2007)156 Cal.App.4th 1174, 1186-1187; see also People v. Anderson (2007) 152 Cal.App.4th 919, 930-932.)
Gardea and Morales also contend that CALCRIM No. 226, "insinuate[d] to the jury that appellant[s][were] required to disprove some element of the offense with which [they were] charged," although the law places the burden of proof upon the prosecution. We reject this contention, also.
The relevant portion of CALCRIM No. 226, as read to the jury, states: "You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any [bias] based on the witness's gender, race.... You may believe all, part, or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe."
CALCRIM No. 226 cannot reasonably be understood to mean that the defense has the burden of disproving the charge. It tells the jury that it must judge the credibility or believability of the witnesses, and outlines some considerations bearing on the jury's determination of credibility. This pattern instruction mirrors the criteria set out in the Evidence Code as a general catalog of those matters having any tendency in reason to affect the credibility of a witness. (Evid. Code, § 780.) CALCRIM No. 226 is an accurate statement of the law. (People v. Ibarra, supra, 156 Cal.App.4th at p. 1188; see also People v. Campos (2007) 156 Cal.App.4th 1228, 1240.)
Morales and Gardea further contend that CALCRIM No. 302 permitted the jury to convict them under an incorrect presumption. We also reject this contention. The court instructed the jury: "If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of the greater number of witnesses, or any witness, without a reason or because of prejudice or desire to favor one side or the other. What is important is whether the testimony or other evidence convinces you, not just the number of witnesses who have testified about a certain point."
In making their contention, appellants emphasize language that they claim directs the jury that it must believe or be convinced by evidence in order to decide a case which improperly insinuates that the defense is held to the wrong standard of proof. Comparable challenges to this instruction were rejected in People v. Ibarra, supra, 156 Cal.App.4th 1174 and People v. Anderson, supra, 152 Cal.App.4th 919. We agree with those cases and reject appellants' arguments here.
Gardea and Morales alternatively argue that the challenged instructions are ambiguous and that it is reasonably probable the jury applied the instructions in a way that violated the Constitution. Similar arguments regarding the same instructions have been rejected in People v. Golde (2008) 163 Cal.App.4th 101, People v. Ibarra, supra,156 Cal.App.4th 1174 and People v. Anderson, supra, 152 Cal.App.4th 919. We reject appellants' argument here. "Because the instructions given were correct statements of the relevant legal principles, the purported error was necessarily harmless. Appellant[s'] jury was neither incorrectly nor inadequately instructed." (People v. Thomas (2007) 150 Cal.App.4th 461, 467.)
Jury Exposure to Excluded Exhibit
Morales claims that the jurors' exposure to an excluded exhibit deprived him of the effective assistance of counsel at trial and that the court abused its discretion by denying his motion for mistrial. We disagree.
Appellant concedes that we review the denial of a motion for mistrial under the abuse of discretion standard (People v. Lewis (2006) 39 Cal.4th 970, 1029) but argues that a different standard applies here because the relevant exhibit was an "inadmissible attorney-client communication [of] the type [that] leads to incurable prejudice and required the court to grant his motion for a mistrial."
This argument concerns two pages of a multiple-page document that was found in Morales's jail cell. The prosecutor offered the document into evidence. The court concluded that two pages of the proffered exhibit constituted "obvious" attorney-client privileged material, and excluded those pages. The admitted pages were marked as People's exhibit 99. The excluded pages were marked as People's exhibit 99A.
During deliberations, the jurors had an exhibit list that referenced exhibits 99 and 99A. On June 13, 2007, the jury requested a description of the charges, and exhibits 99 and 99A. A visiting judge, who did not preside over the trial, received the request. That judge sent People's exhibits 99 and 99A to the jury at approximately 12:00 noon, without contacting the attorneys.
The jury took its lunch break at 12:00 p.m., and returned to continue deliberations at 1:30 p.m. At 2:07 p.m., outside the presence of the jury, the court and counsel discussed the fact that exhibit 99A should not have been given to the jury. The exhibit was quickly removed from the jury room.
Before 2:27 p.m., the visiting judge questioned the jurors and learned that jurors 1 and 5 had briefly discussed the exhibit and wondered whether they should have seen it. The visiting judge then admonished the jurors as follows: "Jurors 1 and 5 were absolutely correct that exhibit 99A was not a part of the evidence in this case and is not evidence, therefore, that you can consider for any purpose. Any decision you make in this case, whether it be finding one or more of the [appellants] guilty or one or more of [them] not guilty or all of them guilty or all of them not guilty cannot come as a result of any reading of exhibit 99A. [¶] You're to treat that as if you'd heard some testimony here in court and the judge had told you, 'Disregard that testimony and do not consider it.' [¶] Do you all understand that?" The jury responded, "Yes, sir." The jury resumed deliberations at 2:27 p.m.
The judge who presided over the trial heard Morales's mistrial motion based upon the jurors' receipt of exhibit 99A. The court questioned the jurors during that hearing and determined that four jurors (3, 9, 10, and 11) "did not see or read or hear a description" of the contents of exhibit 99A; that four jurors (5, 6, 8 and 12) saw the exhibit but did not read it; that one juror (2) "read part of it, glanced at it" and "just let it go" because "it didn't make much sense"; that three jurors (1, 4, and 7) read all or part of exhibit 99A; and that three jurors (1, 4, and 5) briefly discussed it. Each juror stated that exhibit 99A played no part in the verdict.
In this case, exhibit 99A was in the jury room for perhaps two and one-half hours. The record strongly suggests that the jurors were away at lunch during most of that time. The jury innocently requested and received exhibit 99A. It was removed from the jury before most jurors saw or read it. No juror misconduct resulted from the release of that exhibit to the jurors. (See People v. Cooper (1991) 53 Cal.3d 771, 836.)
One page of exhibit 99A contains phrases that relate to the instant case (e.g., "lookout" and Tanore conversation "w/Ghost (Delatorre)"); and other less specific terms (e.g., motion, waive time, background check on victims; discredit witness; record; court appointed legal fees). The other page seems to list witnesses and their contact information. Having reviewed the record, we cannot find that the inadvertent and brief exposure of a few jurors to exhibit 99A interfered with appellants' Sixth Amendment right to counsel. (See U.S. v. Morrison (1981) 449 U.S. 361, 362.)
Sentencing
Castro and Gardea contend that the trial court erred by imposing a section 12022.53, subdivision (d) enhancement upon them with regard to count 3. We disagree.
The jury found Castro, Gardea and Morales guilty of shooting from a vehicle, in violation of section 12034, subdivision (c), and to have violated section 186.22, subdivision (b). The jury also found true the section 12022.53, subdivision (d) allegation that, during the commission of the offense, Morales, a principal of Castro and Gardea, personally and intentionally discharged a firearm causing great bodily injury to Lindea. Based on that finding, the trial court imposed an enhancement of 25 years to life with regard to Castro's and Gardea's convictions of shooting from a vehicle.
Subdivision (b) of section 186.22 provides an enhancement for "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang...."
Section 12022.53 authorized the challenged sentence enhancement. Subdivision (d) of that section provides in relevant part that "any person who, in the commission of a felony specified in... subdivision (c)... of Section 12034, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7,... to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life."
Subdivision (e)(1) of section 12022.53 subjects principals like Castro and Gardea to the same additional 25-year-to-life penalty: "The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d)." (Ibid.,italics added.)
Here, Castro and Gardea were found to have violated sections 12034 (shooting from a vehicle) and 186.22, subdivision (b) (committing a felony to benefit a criminal street gang). In addition, during the shooting, Castro and Gardea, principals, aided and abetted another principal, Morales, who discharged a firearm causing great bodily injury to Liendo, a person other than an accomplice. The trial court properly imposed the section 12022.53, subdivision (d) enhancement on Castro's and Gardea's convictions of shooting from a vehicle. (Id. at subds. (d) & (e)(1); see People v. Oates (2004) 32 Cal.4th 1048, 1062.)
Morales's conviction of count 1, attempted murder, is reversed. Castro's conviction of count 2, attempted murder, is reversed. Gardea's conviction of both counts of attempted murder are reversed. The matter is remanded for resentencing and other proceedings including, in the prosecution's discretion, retrial of the reversed attempted murder counts. In all other respects, the judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.